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June 21, 2008

Why is Senator Jim Webb the only national figure focused on the prison economy?

I find it so very exciting that Senator Jim Webb continue to question the US incarceration rate and to explore the economic consequences of mass incarceration and criminal justice drug policies. Senator Webb's congressional hearing on these topics this week is nicely reviewed in this Nation piece, and it ends with an encouraging report that Senator Webb is just getting revved up:

With this hearing, Senator Webb continues to lead a much overdue Congressional reaction to the US's failing drug policy. Indeed two colleagues on the committee, Senator Amy Klobuchar and Representative Maurice Hinchey praised Senator Webb for his "courage." And don't expect the Senator to back off any time soon. His press secretary, Kimberly Hunter, e-mailed me following the hearing, "Senator Webb has been interested in the US incarceration rate and drug policies since he was a journalist studying the Japanese prison system in 1984.... [This] issue is far from popular but needs to be debated in the public view. With every hearing, his efforts help to raise the awareness of the American people and draw attention to a problem that is easier to ignore then address head-on."

Also encouraging is that, as detailed in this new Wall Street Journal article, Senator Webb may soon have an even bigger stage from which to draw attention to these issues. I sincerely hope that Senator Webb will continue to make these issues a priority even if he becomes Senator Obama's VP choice.

What mystifies me, however, is the failure of any other national politicians to talk seriously about these issues. As Senator Webb is rightfully highlighting, mass incarceration and failed US drug policies are very, very costly for national, state and local governments. I think modern bloated criminal justice systems are a telling example of big government gone bad. And yet, with all the government bashing and economic hand-wringing, it seem that Senator Webb is still among a rare few politicians with the courage to explore important policy realities without an undue and misguided concern about political rhetoric.

June 20, 2008

Judge Adelman operationalizes deconstructed child porn guidelines

As noted here, the federal defenders' first paper in its important "Deconstructing the Guidelines" project addressed the child porn guidelines. Fortunately for a defendant sentenced today, federal District Judge Lynn Adelman keeps up with his sentencing reading: he cites this new paper in support of a below-guideline sentence in US v. Hanson, No. 07-CR-330 (E.D. Wisc. June 20, 2008) (available for download below). Here is the start and a key paragraph from the opinion in Hanson:

The government charged defendant Jon Hanson with transporting and possessing child pornography, contrary to 18 U.S.C. §§ 2252A(a)(1) & (a)(5)(B), and he entered a plea of guilty to the transporting charge, which carries a statutory penalty range of 5 to 20 years. However, due to the numerous enhancements he faced, the sentencing guidelines recommended that defendant spend 210-262 months in prison. Because I found this range far greater than necessary to satisfy the purposes of sentencing in this case, I imposed a non-guideline sentence of 72 months, followed by life of supervised release. This memorandum sets forth the reasons for the sentence imposed....

In a recent paper published on Professor Douglas Berman’s sentencing website, an Assistant Federal Defender traced the history of this guideline and pointed out its serious flaws, which were clearly evident in this case. See Troy Sabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines, available athttp://sentencing.typepad.com (June 10, 2008). As Stabenow explains, much like the crack guideline criticized by the Supreme Court in Kimbrough, guideline 2G2.2 is not representative of the Commission’s typical role or of empirical study. The guideline has been steadily increased despite evidence and recommendations by the Commission to the contrary. Congress has repeatedly amended it directly, ostensibly to target mass producers of child pornography and/or repeat abusers of children, a class of offenders that make up less than 5% of those affected by the changes. The most recent changes from 2003 apparently came from two lawyers in the Justice Department who persuaded a novice Congressman to add them to the popular Amber Alert bill. Id. at 27. To the extent that the advisory guidelines deserve continued respect from courts, that respect will be greatest where the Commission has satisfied its institutional role of relying on evidence and study to develop sound sentencing practices. This guideline simply does not represent that role, as the Commission itself has acknowledged.

Seventh Circuit reverses sentence for procedural unreasonableness

At the end of a long opinion rejecting various trial complains, the Seventh Circuit reverses a within-guideline sentence as procedurally unreasonable in US v. Carter, No. 06-2412 (7th Cir. June 20, 2008) (available here). In Carter, the district court seemed afraid to use public service as a basis for going outside the guidelines. Here is a key sentence from a key portion of the panel's ruling explaining the error of the district court's undue affinity for the guidelines:

The district court in this case appeared to place too much weight on the Guidelines. The Guidelines are but one factor among those listed in 18 U.S.C. § 3553(a), and regardless of whether courts have previously recognized public service as a ground for departure from the Guidelines, sentencing courts are charged with considering as part of the § 3553(a) factors “the history and characteristics of the defendant,” which would include a defendant’s public service.

"Teen Hacker Could Get 38-Year Sentence for Fixing Grades"

The headline of this post is the headline of this article from the E-Commerce Times. Here is start of the piece:

They may be just kids, but two Orange County, Calif., teens are accused of committing a whole bunch of grown-up crimes. The allegations include hacking into school computers to change grades and planting spyware on a district computer. One of them faces 69 felony charges, which could land him in prison for up to 38 years if he's convicted.

The article provides more details to suggest that it is quite unlikely that anyone will be going to prison for decades for hacking. Indeed, it ends with a set of creative alternative sentencing ideas:

Indeed, hacking into school computers isn't new, but it is a serious crime, Parry Aftab, cybercrime lawyer and executive director of WiredSafety.org, told the E-Commerce Times. "Ever since 'War Games' and 'Ferris Bueller's Day Off,' we've seen young people using school computers to improve their grades," Aftab said.

Since those early days, however, the criminal aspects of such activity have become more clear, she added. "If someone's going to do this — and especially if they're 18 — they need to recognize that this is a grown-up crime," she said.

Rather than a prison sentence, however — which may or may not be plea-bargained, Aftab noted — there could be other punishments that better fit the crime and take the defendants' technical skills into account, she said. At WiredSafety.org, for instance, "whenever kids do these kinds of things, we put them to work trying to hack parental control programs" with the permission of the companies involved, she said.

"Live Free or Die," but be sure to pay up NH sex offenders

The official motto of the state of New Hampshire is "Live Free or Die." But, as detailed in this local article, it is apparently fine in the state to charge a fee for sex offender as they make this choice:

The state Supreme Court has upheld the state's practice of charging convicted sex offenders $34 a year to pay for the state's sex offender registry. Philip Horner, a former Barrington doctor who was convicted in 2000 of five counts of felonious sexual assault on a 15-year-old girl, had challenged the expense as an illegal disproportionate tax....

Horner's appeal challenged the twice-a-year $17 fee convicted sex offenders must pay each time they register their address and other particulars with their local police department. State law requires the registration and the $17 semi-annual charge.

The money covers the cost of registering sex offenders: $15 of it goes toward the costs of maintaining the statewide sex offender registry. The remaining $2 goes to the local police department for work registering offenders.

Horner argued that the fee is really an unfair, disproportionate tax because it pays for a registry that benefits all citizens but is paid by only the sex offenders who register. The state disagreed and argued that the charge is a legal fee because the law serves a regulatory purpose, and the money charged helps defray the cost of maintaining the registry, according to court records.

The justices agreed in an unanimous opinion issued yesterday. "We hold that the $17 semi-annual charge imposed upon sex offenders is not intended to raise additional revenue but, rather, is used to solely support a governmental regulatory activity made necessary by the actions of those who are required to pay the charge," the court said.

(Too) little coverage of JEC hearing on US drug policy

Especially with Senator Jim Webb generating buzz as a VP possibility, I am surprised there was not more media coverage of the hearing he conducted yesterday on US drug policy. Fortunately, this local story, headlined "Webb urges fresh look at the war on drugs: The senator says billions spent on locking people up hasn't reduced the flow of drugs," provides an effective review of the event:

Virginia Sen. Jim Webb began building a public case Thursday to change the nation's drug laws to stress treatment over incarceration for nonviolent offenders. The freshman Democrat held a hearing of the Joint Economic Committee to solicit testimony from prosecutors and scholars who argued that the decades-long emphasis on incarceration has been costly and ineffective.

Armed with statistics showing soaring incarceration rates and drug seizures, Webb argued — and his witnesses agreed — that authorities have failed to reduce the supply of drugs appreciably. "Despite the number of people we have arrested, the illegal drug industry and the flow of drugs to our citizens remain undiminished," Webb said....

"The time has come to stop locking up people for mere possession and use of marijuana," Webb wrote in his new book, "A Time to Fight." He added in the book: "Drug addiction is not in and of itself a criminal act. It is a medical condition, indeed a disease, just as alcoholism is, and we don't lock people up for being alcoholics."

Webb was not quite as blunt at Thursday's hearing, however, and said he was not pursuing any specific legislation at the moment. "We're just trying to get the facts out," he said.

Joining Webb for the joint Senate-House hearing was Rep. Robert C. "Bobby" Scott, D-Newport News, a longtime critic of prison-focused crime policies. Scott, chairman of the House Judiciary subcommittee on crime, said prevention programs such as prenatal care, early-childhood education, summer jobs and access to college would prove more cost effective than spending $65 billion a year to lock people up, as the United States does today.

In a sign of the political stalemate over crime policy on Capitol Hill, however, no Republicans attended Thursday's hearing.

June 19, 2008

There's no crying in court (especially in a capital case)!?!?!

"Are you crying, defense counsel? Are you crying? Are you crying?... There's no crying, ... there's no crying,in court! Professor Kingfield was my professor, and he gave me a dime and told me to call my parents to tell them I'm not gonna be a lawyer! And did I cry? ... NO! NO! And do you know why? ... Because there's no crying in court! There's no crying in court! There's no crying!"

Thanks to this AP story, I was able to imagine these specifics from the motion filed by some local Ohio prosecutors (assuming they are fans of this classic scene). Here are the actual details of a story that is as interesting as it is silly:

Prosecutors say there should be no crying during closing arguments in death penalty cases.

Jason Phillabaum, an assistant Butler County prosecutor, filed motions this week asking that defense attorneys be blocked from using emotional appeals to a jury during the trial and sentencing phase of an upcoming death penalty case. “Specifically, defense attorneys have strategically been known to cry on cue and beg for their client's lives,” according to the motions, which notes previous cases where defense attorneys have been admonished for crying in front of a jury during closing arguments.

The motions came following a trial last month in which attorney Greg Howard cried while urging jurors to spare his client, Harvey “Shawn” Johnson. Johnson received life in prison for the kidnapping and strangulation of Kiva Gazaway....

Phillabaum and county Prosecutor Robin Piper declined to discuss the motions, but Piper said he thought a trained professional should be able to control emotions in court.

Howard called the motions “petty” and said he can't wait to argue against them in a July 18 hearing before Common Pleas Judge Andrew Nastoff in this southwest Ohio city. “They want to kill my clients. They want to win at all costs,” Howard said. “They are tired of losing, so they are trying to limit what I can say in my closing arguments.”

He added that if he could cry on cue, he would be in Hollywood. “It is emotional; you are trying to save your client's life. It just comes out,” Howard said.

A per curiam decision today from the Eleventh Circuit in US v. Castaing-Sosa, No. 07-15490 (11th Cir. June 19, 2008) (available here), is remarkable for many reasons. Here are the snippets (with a few edits) that really caught my attention:

Sosa was arrested following an undercover investigation by multiple law enforcement agencies into a drug distribution ring operating in Orlando, Florida. Sosa worked for the drug distribution ring as a courier.

After Sosa pled guilty to the heroin conspiracy offense, the presentence investigation report calculated an advisory guidelines range of 97 to 121 months’ imprisonment. On appeal, Sosa does not challenge these guidelines calculations...., but because the statutory mandatory minimum sentence for Sosa’s heroin conspiracy conviction is ten years’ (120 months’) imprisonment, Sosa ... arguing that [the application of the mandatory minimum term] violated the separation of powers doctrine and the Eighth Amendment’s prohibition on cruel and unusual punishment. The government responded that the information Sosa had provided in his interview with the government had not risen to the level of substantial assistance and, thus, the government had not filed a motion pursuant to U.S.S.G. § 5K1.1 that would permit the district court to sentence Sosa below the statutory mandatory minimum.

After noting that Sosa was subject to a statutory mandatory minimum sentence of 120 months’ imprisonment, the district court nonetheless imposed an 80-month sentence. The district court imposed a lesser sentence to avoid a disparity between Sosa’s sentence and those of his coconspirators who had received sentences below 90 months. After imposing the 80-month sentence, the district court advised Sosa on the record that the sentence would be overturned if the government appealed, in which case Sosa would be required to serve the statutory mandatory minimum sentence, as follows:

Now, understand that if the government chooses to appeal this sentence, it will be reversed and you will have to serve your mandatory minimum sentence. So it’s entirely up to the government at this point, but I am sentencing you to 80 months so that you fall in line with all of your other co-conspirators.

The government objected to the 80-month sentence because it was below the statutory mandatory minimum. This appeal followed.

To the district court's credit, it correctly predicted that a government appeal would lead to a reversal. In fact, the Eleventh Circuit writes a (surprisingly restrained) decision reversing the district court's clear effort to "nullify" the application of the statutory mandatory minimum. But, to the extent the district court genuinely believed justice demanded an 80-month sentence here, I am troubled by the misguided (and ultimately ineffective) way that the court sought to achieve justice.

I say this because a thoughtful judge could have — in my view, should have — required the Government to explain in greater detail why Sosa did not justify a 5K letter and/or have asked the Government why the court should not have constitutional doubts about the application of the severe mandatory minimum term under these circumstance. Given recent Supreme Court rulings and many other recent legal developments, the district court might have developed any number of plausible constitutional arguments (including many beyond those raised by the defendant) for refusing to apply the applicable statutory mandatory minimum on these facts.

Alternatively, once the district court realized that a 10-year mandatory was going to be applicable, the court might have considered now refusing to accept the defendant's plea to counts that, in the district judge's view, required an unjust sentence. Or the court might have considered some way of announcing alternative sentences in an effort to express its view that a sentence below the mandatory minimum would be more just. But, much as I dislike the application of severe mandatory minimum sentencing terms, for rule-of-law reasons I am troubled that a sentencing judge would flagrantly disregard applicable law without providing a legally plausible justification for doing so and also say it is up to prosecutors to appeal simply to ensure applicable law is followed.

"Mexico asks World Court to halt U.S. executions"

The headline for this post comes from the headline to this Reuters piece. Here are some specifics from the start of the article:

Mexico asked the World Court on Thursday to take urgent steps to stop imminent U.S. executions of five Mexicans on death row who were denied their rights to consular assistance. One of the five, Jose Medellin, is due to die on August 5 in Texas, which is poised to set execution dates for the others.

The International Court of Justice (ICJ) in The Hague ruled in 2004 that the United States had violated international law by failing to inform 51 Mexicans now on death row of their right to consular assistance and said the cases should be reviewed. Mexican representative Juan Manuel Gomez-Robledo said the United States was in breach of its international obligations, and asked the U.N.'s highest court to seek stays of the five imminent executions. "Five Mexican nationals ... could be executed without their convictions and sentences being given the review and reconsideration that is their right," he said.

The issue has soured relations between the United States and its southern neighbor Mexico, which opposes the U.S. death penalty. The United States will put its case later on Thursday.

Beyond being a matter of interest to folks who follow the death penalty and international law, I could readily imagine this matter raising a tricky set of issues for political dialogue for both major candidates running for US President. Stay tuned.

Parental punishment found excessive in Canada

Thanks to this humorous post from Eugene Volokh about a hard-to-believe true story, I found press reports here and here about a Canadian superiour court ruling about excessive parental punishment. Here are the basics from this press account:

First, the father banned his 12-year-old daughter from going online after she posted photos of herself on a dating site. Then she allegedly had a row with her stepmother, so the father said his girl couldn't go on a school trip. The girl took the matter to the court — and won what lawyers say was an unprecedented judgment. Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday that the father couldn't discipline his daughter by barring her from the school trip....

Lucie Fortin, the lawyer representing the 12-year-old, said the judge found that depriving the girl of the school trip was an excessive punishment. She said the girl has already been forbidden to use the Internet and her father also punished her by cancelling her participation in an extracurricular event.

The trip, a three-day outing within Quebec supervised by teachers and volunteer parents, marked her Grade 6 class graduation from elementary school. "She's becoming a big girl. ... It's a unique event in her life," Ms. Fortin said. The girl's parents are divorced. Her father has legal custody but for the past month she has lived with her mother, Ms. Fortin said.

Before Judge Tessier, she cited Sections 159 and 604 of the Quebec Civil Code, which allow minors in some circumstances to initiate court proceedings relating to the exercise of parental authority.

So, let's review. In the United States, the Supreme Court and lower courts regularly dismiss legal challenges brought by juveniles (and adults) that claim that decades or life in prison constitutes excessive punishment. But, north of the border, courts are apparently eager to declare a parental punishment in the form of grounding a 12-year-old girl to be excessive. Hmmmm. (I think I will call this the Hannah Montana doctrine: sing it with me closet Hannah fans, "Let's go, GNO.")

Still waiting for criminal justice biggies from SCOTUS

As it does so well, SCOTUSblog has all the news on the Supreme Court's work this morning. Five opinions were released, but the big three I am most interested in (Exxon, Heller, Kennedy) were not among the bunch. Next Monday or later next week is likely when we can and should expect all of these rulings.

The only criminal justice ruling today concerned the right of self-representation in Indiana v. Edwards. Here is the SCOTUSblog summary account of the ruling:

The Court has released the opinion in Indiana v. Edwards (07-208), on whether criminal defendants found competent to stand trial must be permitted to represent themselves. The ruling below, which found for the defendant, is vacated and remanded. Justice Breyer wrote the opinion. Justices Scalia and Thomas dissented.

Seeking reports on JEC hearing on US drug policy this morning

Though it has received no press coverage, I consider very notable Senator Jim Webb's convening a hearing this morning of Congress's Joint Economic Committee (JEC) to examine the economic consequences of the US drug policy (previously discussed here).

This official press release provides the basics of the hearing in DC this morning, but coming Supreme Court decisions and other news of the day seem likely to keep this event under the radar screen for the mainstream press. Consequently, I hope any attendees or bloggers might report on anything noteworthy that comes of this event. I think the hearing, which is supposed to start at 10am, can be watched on-line live from a link here.

UPDATE: The hearing is streaming live and Senator Webb's opening remarks are quite interesting. And now available on this official hearing page are all the written statements of the witnesses and some interesting charts.

June 18, 2008

The latest must-read from Prof. Stuntz

Though I do not always accept Professor Bill Stunz's anaylsis, I always learn and am provoked by his scholarly work. His latest opus, entitled "Unequal Justice," is now in print here at the Harvard Law Review. Here is the abstract:

Inequality is a core feature of American criminal justice, but its causes remain obscure. Official racism has declined even as the black share of the prison population has risen. The generation that saw the rise of enormous, racially skewed punishment for drug crime followed the generation that saw the rise of civil rights for black Americans and racially integrated police forces. What explains these trends? One answer — the decline of local democracy — has received too little attention in the growing literature on this subject. A century ago outside the South, high-crime city neighborhoods were largely self-governing; residents of those neighborhoods decided how much criminal punishment to impose, and on whom. Those locally democratic justice systems were both remarkably effective and surprisingly egalitarian. During the latter half of the twentieth century, local democratic control over criminal justice unraveled. Residents of high-crime cities grew less powerful; suburban voters, legislators, and appellate judges grew more so. Prison populations fell sharply, then rose massively. The effects of both the fall of criminal punishment and its subsequent rise were disproportionately felt in urban black neighborhoods. The justice system grew less equal, and less just.

Parts I and II of the Article explore these trends. Part III turns to the future, and asks what steps might be taken to reverse them. I suggest three changes: better-funded local police forces, more trials to locally selected juries, and more vaguely defined crimes (to give those juries opportunities to exercise judgment). Those changes would make urban criminal justice more democratic, more lenient — and more egalitarian

New FAMM publication talks about Second Chance Act

I noticed from the FAMM website that the latest FAMMGram is available here, and includes a "cover story on the Second Chance Act, including the most frequently asked questions, and much more." Here is how the dicussion of the Second Chance Act starts:

The Second Chance Act, legislation designed to aid formerly incarcerated people coping with the challenges of reentry, was signed into law by President George W. Bush on April 9. Lawmakers from across the political spectrum and representatives from many of the advocacy groups who worked for more than five years to see this important legislation become law packed the signing ceremony in Washington.

“The country was built on the belief that each human being has limitless potential and worth. Everybody matters,” said Bush during the signing ceremony. “We believe that even those who have struggled with a dark past can fi nd brighter days ahead. One way we act on that belief is by helping former prisoners who’ve paid for their crimes — we help them build new lives as productive members of our society.”

A timely scholarly piece in light of the Kozinski kerfuffle

I am still thinking about what to think about the Kozinski kerfuffle (though I love the alliteration that comes with calling this story a kerfuffle). While I think, I plan to check out this article I just noticed on SSRN, titled "When Judges Are Accused: An Initial Look at the New Federal Judicial Misconduct Rules." Here is the abstract:

On March 11, 2008, the Judicial Conference of the United States, the administrative policy-making body of the federal judiciary, approved the first set of nationally binding rules for dealing with accusations of misconduct by federal judges. The new rules implement recommendations made by a committee chaired by Supreme Court Justice Stephen Breyer. The Breyer Committee found that although the judiciary has been doing a very good overall job in handling complaints against judges, the error rate in high-visibility cases is far too high.

The new regulatory regime comes into existence at a time when federal judges have been accused of ethical transgressions that span the spectrum of actionable misbehavior. Indeed, at least three judges face the possibility of impeachment proceedings.

This article examines the newly adopted misconduct rules against the background of these recent controversies. The underlying question is the same one that Congress grappled with when it established the current statutory framework in 1980: can federal judges be trusted to investigate and impose appropriate discipline for misconduct in their ranks?

The article begins with a brief account of the history that led to the promulgation of the new rules. Next, the article outlines the procedures established by Congress and the judiciary for handling allegations of misconduct by federal judges. The remainder of the article addresses the major issues raised by the new rules: the move toward greater centralization in the administration of the disciplinary system; the definition of misconduct; the possible need for greater procedural formality; the nature and timing of public disclosure; and efforts to make the process more visible.

Intriguing Apprendi habeas decision from Seventh Circuit

Through a lengthy opinion today in Mack v. Battaglia, No. 06-3257 (7th Cir. June 18, 2008) (available here), the Seventh Circuit turns away an interesting Apprendi claim coming from an Illinois prisoner. Here is the start of the panel's analysis in Mack:

Mack’s case comes down to a single, discrete issue. Mack contends that his natural life sentence violates the principle of Apprendi because there was no jury determination establishing the facts necessary to impose an enhanced sentence, and Mack never waived his right to have a jury trial as to his sentence. He maintains that this error was not harmless and that the state court errors prejudiced him. He argues that double jeopardy principles bar another sentencing trial, and that he should therefore be re-sentenced to a maximum term of up to forty years’ imprisonment.

The panel concludes that Mack's natural life sentence did not violate Apprendi, but it takes a long and interesting opinion to get there (and to thereby avoid other issues Mack raised).

June 17, 2008

Hood execution stopped at last minute

According to this AP article, a "state district judge has put off the scheduled execution of Charles Dean Hood for a double slaying in suburban Dallas almost 20 years ago." Here's more:

In an order signed just over an hour before Hood could have gone to the death chamber Tuesday night, state District Judge Curt Henderson withdrew the execution warrant after defense attorneys for the inmate had sought any correspondence in the Collin County district attorney's office that could be related to accusations of a long-standing romantic relationship between one of Hood's prosecutors and the judge who presided over his trial in 1990.

Third time's (almost) the charm in Tenth Circuit sentencing case

In an interesting decision in a case that may seem to the Tenth Circuit to be never-ending, a panel today affirms an above-guideline sentence in US v. Wittig, No. 07-3051 (10th Cir. June 17, 2008) (available here). Here is how the panel opinion starts:

David C. Wittig appeals — for the third time — from his sentence for conspiracy, bank fraud and money laundering. We vacated his first two sentences (51 months imprisonment and 60 months imprisonment). United States v. Weidner, 437 F.3d 1023 (10th Cir. 2006) (Wittig I); United States v. Wittig, 206 Fed. Appx. 763 (10th Cir. 2006) (unpublished) (Wittig II). The district court has now sentenced Wittig to 24 months imprisonment, followed by a three-year term of supervised release with special conditions, including an occupational restriction. United States v. Wittig, 474 F. Supp. 2d 1215 (D. Kan. 2007) (Wittig III). Wittig appeals from the prison sentence and the occupational restriction. Exercising jurisdiction pursuant to 18 U.S.C. § 3742(a), we affirm the sentence but reverse the occupational restriction.

There are numerous interesting aspect to this round of the Wittig sentencing, but most notable is a concurring opinion by Judge Hartz that is joined by both other members of the panel (which seems a bit unusual to me).

In my view, a sentence is substantively unreasonable if the only reason that the length is outside the range of what judges ordinarily impose for “defendants with similar records who have been found guilty of similar conduct” is that the sentencing judge has an idiosyncratic view of the seriousness of the offense, the significance of the defendant’s criminal history and personal qualities, or the role of incarceration in the criminal-justice system. Determining whether a particular judge has idiosyncratic views could be problematic, except that the United States Sentencing Commission has, in large part, developed its Sentencing Guidelines by studying the sentences being handed down by district judges throughout the country. See Kimbrough v. United States, 128 S. Ct. 558, 574–75 (2007). Thus, the consideration of the Guidelines Sentencing range required by § 3533(a)(4) ordinarily provides the sentencing judge with knowledge of sentencing practice within the federal judiciary. A significant variance from that practice should be considered unreasonable if it can be justified only by disagreement with the general views of other judges.

I am not sure I accept (or even entirely understand) this proposed "different approach" to substantive reasonableness That said, I do share the concern that substantive reasonableness review may have become (or will become) an empty gesture in lots of cases.

But, critically, my chief concern is not that some idiosyncratic views of federal district judges may influence sentences (especially since there is little doubt that idiosyncratic views and plea practices of federal prosecutors surely influence sentences all the time without being subject to any kind of review or even transparency). Rather, my chief concern is that sometime (perhaps often) the idiosyncratic aspects of the guidelines (such as enhancements based on acquitted conduct) influence sentences and yet, nearly 3.5 years after Booker, only a single within-guideline sentence has even been declared substantively unreasonable by a circuit court.

Two states scheduled to execute today

Both Oklahoma and Texas have executions scheduled for today. Though the scheduled Oklahoma execution is the first one for the state in nearly a year (details in this AP story), the Texas execution is making the most news because of an alleged affair between the prosecutor and judge involved in Charles Dean Hood's capital trial. Writing here for CBS News in a critical piece headlined "Sex And Death In Texas," Andrew Cohen provides this update on the Hood case:

Barring last-minute court intervention, the state of Texas is prepared Tuesday evening to execute Charles Dean Hood, who was convicted and sentenced to death nearly two decades ago by a judge who allegedly was sleeping with the prosecutor during the trial. If this jolts your conscience a bit — tell me, would you want to be a defendant in such circumstances? — consider the utter lack of curiosity and compassion with which the startling revelation has been met by the state courts in Texas.

The Texas Court of Criminals Appeals, in three separate rulings Monday (which it requested not be made public), declared on procedural grounds that “rumors” of an intra-court, intra-trial romance aren’t legally sufficient to warrant a 30-day reprieve from Hood’s execution in order to allow his lawyers to investigate the allegations. The court ruled that because Hood’s investigator could not prove back in 1997 that there was an affair Hood now is barred from raising the issue today, on the eve of his execution. It also rejected Hood’s request for a delay because the wrong lawyer signed the appeal papers....

I have no idea whether Hood is guilty of his crimes or not — the odds say that he is. For all I know there was plenty of good evidence against him and another judge might also have rendered decisions leading to Hood’s conviction. But right now that is not the point. Right now the point is to determine, before it is too late for Hood, whether the law in America — and not just in Texas — permits a capital conviction when such a potentially blatant conflict of interest exists....

With just a few hours to go before Hood’s execution, his attorneys told me Tuesday morning that they aren’t yet sure where they are next going to raise the “relationship” issue on appeal. But surely, unless Gov. Rick Perry intercedes on Hood’s behalf, the whole matter, including other important appellate issues, will end up before the United States Supreme Court. And that means Justice Antonin Scalia, who initially handles appeals out of the 5th U.S. Circuit Court of Appeals — the jurisdiction in which the Hood case took place.

It will be fascinating to see whether and to what extent the righteous and religious justice handles this case.

Interesting line of attack against the death penalty

This new Baltimore Sun article, headlined "Capital case lawyer pay called low: Defense attorneys say death penalty should not apply," reports on an interesting attack on the application of the death penalty in Maryland. Here is how the article starts:

The lawyers representing a man accused of killing a correctional officer at the Maryland House of Correction in 2006 argued yesterday that their client should not face the death penalty because they are not being adequately compensated for their work on the case.

Gary E. Proctor and co-counsel Michael E. Lawlor entered a motion yesterday to preclude the death penalty as a sentencing option in the murder trial of Lee Edward Stephens, one of two inmates accused in the killing, because the fees they are being paid by the state to mount a defense are "manifestly unreasonable."

Final version of "Engaging Capital Emotions"

The Supreme Court should soon hand down its opinion about the constitutionality of capital child rape laws. While we wait, readers are welcome to check out the finalized version of the commentary Stephanos Bibas and I put together, titled "Engaging Capital Emotions," which is already in print here as at the Northwestern University Law Review Colloquy. Helped by the Colloquy's terrific editorial team, we have refined a few points from our first drat and added this conclusion:

Emotions can evolve and be informed. Some opponents contend that capital-child-rape laws will harm child-rape victims and their families. If so, this harm will undercut the sympathy and empathy that drive these laws, leading legislators to pull back. As our discussion highlights, democratic processes engage capital emotions effectively in deciding which crimes are eligible for the death penalty. Thus, unelected judges should be wary of stifling a healthy, democratic national dialogue that can air and develop capital emotions.

Cool, somber courtrooms can seem hostile to emotional expression. But, especially in criminal justice, we must neither forget nor disdain seething passion. Especially where those passions are most intense, in capital cases, lawyers and scholars ought to combine doctrinal analysis with sensitivity to emotion.

June 16, 2008

Upcoming JEC hearing on costs of US drug policy

According to this webpage at FAMM, later this week "Senator Jim Webb (D-Va.) will convene a hearing of the Joint Economic Committee (JEC) to examine the economic consequences of the United States' drug policy." Here are more details:

The hearing, entitled “U.S. Drug Policy: At What Cost?” will be held Thursday, June 19. The panel will discuss the illegal drug economy in the United States, assess the costs of U.S. policy responses to combatting drug use and address the need for policy reforms. The hearing is also likely to address, to some extent, mandatory minimums and sentencing issues.

This page at Stop the Drug War lists expected witnesses, though I cannot yet find any official notice of the scheduled hearing.

As noted in prior posts linked below, last year Senator Webb convened a JEC hearing on the costs of mass incarceration. It is principally for this reason that I have been excited by the prospect of Senator Webb being on a presidential ticket.

Primer on modern post-Booker realities for white-collar cases

Thanks to a friendly reader and West's copyright kindness, I can post a copy of a recent commentary by Ellen Brotman titled "From Jones to Rita, Gall and Kimbrough: The Supreme Court Gives Sentencing Back To the District Courts." In addition to discussing a number a post-Booker basics, the piece concludes with some interesting ideas and practice pointers directed toward white-collar practitioners. Here is a sample:

Beyond this support for below-guidelines sentences and judicial discretion, Gall and Kimbrough provide a significant tool for the white-collar practitioner at sentencing: the argument that an individual guideline does not itself reflect the factors listed in Section 3553(a) because the guideline has not been promulgated in accordance with the Sentencing Commission’s traditional role and expertise....

Use the Sentencing Commission’s own statistics and teachings to assist you in these arguments. For example, the commission’s 2004 publication “Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform” includes an interesting discussion of the evolution of the guidelines relating to economic crimes and the difficulty of calculating the effectiveness or fairness of the interplay of enhancements that often occur in white-collar cases.

Will Texas try to ensure record death-row stay gets longer?

As detailed here at SCOTUSblog, the Supreme Court's work today did not include any notable criminal justice decision. As detailed in this AP article, however, the Justices did make headlines with a notable cert denied in a capital case:

The longest-serving prisoner on Texas' death row won a U.S. Supreme Court ruling Monday that his case must go back to his trial court in Dallas. Ronald Chambers, 53, has been on death row for more than 32 years, sent there in 1976 for the abduction and fatal shooting of 22-year-old Mike McMahan, a Texas Tech University student from Washington state.

Without comment, the high court Monday declined to review a federal appeals court's decision to send back Chambers' case because questions used by jurors to decide his death sentence were improper. The Texas attorney general's office had appealed a ruling from the 5th U.S. Circuit Court of Appeals, which was based on a Supreme Court decision last year involving jury instructions given to three other condemned Texas prisoners.

"The 5th Circuit had reversed his death sentence," Jordan Steiker, one of Chambers' lawyers, said Monday. "The state appealed and the state lost. Now it goes back for resentencing. "This is very good for him." Dallas County prosecutors will have to decide whether to seek the death penalty at a new punishment trial.

I wonder how much time and Texas taxpayer money has been spent by the state trying to get Ronald Chambers executed. As the AP article details, Chambers has been tried three times for the abduction and shooting of McMahan, with each trial resulting in a death sentence:

His first conviction was overturned by the Texas Court of Criminal Appeals because a state-appointed psychiatrist who questioned him failed to warn Chambers his responses would be used against him. He was retried in 1985 and convicted again. The Supreme Court threw out that conviction four years later, ruling prosecutors improperly excluded three black people from his jury. Chambers is black. In January 2007, Chambers was set to die for the punishment reached at his third trial. The lethal injection, however, was stopped until the justices ruled on the cases of the three other inmates who were challenging the jury instructions.

Anyone want to predict whether Texas will finally give up trying to keep Chamber on death row or instead will use more time and taxpayer money to pursue his execution?

More on the Waybright decision finding federal SORNA provision unconstitutional

As first noted in this post, U.S. District Judge Donald Molloy last week found constitutional problems with provisions of the Adam Walsh Act in US v. Waybright, No. CR 08-16-M-DWM (D. Montana June 11, 2008). I just received from a friendly reader, and now have made available for download below, the full text of the opinion. Here is how it starts:

Bernard Lenwood Waybright was charged in a two-count indictment with failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Section 2250(a) is part of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”). The section makes it a federal crime for a sex offender who is required to register under SORNA to travel in interstate commerce and then fail to register. Waybright was convicted of a crime in West Virginia that obligated him to register under SORNA. He traveled to Montana, and did not register with local law enforcement authorities in Montana.

Waybright filed three motions to dismiss the indictment, asserting seven different legal grounds for dismissal. He contends: (1) Congress exceeded its power under the Commerce Clause in enacting SORNA’s registration requirements and making it a federal crime to fail to register; (2) SORNA violates the Tenth Amendment because it requires state officials to accept federally-mandated sex offender registrations before any state chooses to implement SORNA; (3) SORNA violates the right to travel because it subjects sex offenders who move to another state to stiffer registration requirements and penalties than those that remain in a single state; (4) Congress violated the non-delegation doctrine by authorizing the Attorney General to determine whether SORNA applied retroactively; (5) regulations issued by the Attorney General pursuant to SORNA violate the Administrative Procedure Act because they were promulgated without notice and comment; (6) Waybright cannot be convicted of violating 18 U.S.C. § 2250(a) because Montana has not implemented SORNA; and (7) Waybright’s conviction would violate due process of law because Waybright was not notified of his obligation to register under SORNA. Oral argument on Waybright’s motions took place on June 4, 2008.

No court of appeals has addressed Waybright’s arguments. It is evident that the same or similar arguments have been raised in district courts around the country. These courts have mostly rejected such challenges for varying reasons. In my view, those district courts have it right for the most part. I conclude that all of Waybright’s arguments, except one, lack merit. I agree with Waybright’s claim that enactment of 42 U.S.C. § 16913, which requires all sex offenders to register regardless of whether they travel in interstate commerce, is not a valid exercise of Congress’ power under the Constitution. I therefore declare 42 U.S.C. § 16913 unconstitutional. Moreover, because Waybright cannot be convicted of failing to register under § 2250(a) unless the government proves he was required to register under § 16913, the Indictment against Waybright must be dismissed without prejudice.

The important project of "Deconstructing the Guidelines"

As detailed way down on this federal defender resource page, the federal defenders are starting an important new project entitled "Deconstructing the Guidelines." Here is how the project is described on the FD resource page:

Deconstructing the Guidelines is a special project undertaken by National Federal Defender Sentencing Resource Counsel. The papers in this section critically examine the history and basis of the most frequently encountered provisions of the U.S. Sentencing Guidelines. Judges are now invited to consider arguments that the guideline itself fails properly to reflect § 3553(a) considerations, reflects an unsound judgment, does not treat defendant characteristics in the proper way, or that a different sentence is appropriate regardless. Rita v. United States , 127 S. Ct. 2456, 2465, 2468 (2007). Judges "may vary [from Guidelines ranges] based solely on policy considerations, including disagreements with the Guidelines," Kimbrough v. United States, 128 S. Ct. 558, 570 (2007) (internal quotation marks omitted), and when they do, the courts of appeals may not "grant greater factfinding leeway to [the Commission] than to [the] district judge." Rita, 127 S. Ct. at 2463. Whatever respect a guideline may deserve depends on whether the Commission acted in "the exercise of its characteristic institutional role." Kimbrough, 128 S. Ct. at 575. This role has two basic components: (1) reliance on empirical evidence of pre-guidelines sentencing practice, and (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field. Rita, 127 S. Ct. at 2464-65. "Notably, not all of the Guidelines are tied to this empirical evidence." Gall v. United States, 128 S. Ct. 586, 594 n.2 (2007). When a guideline is not the product of "empirical data and national experience," it is not an abuse of discretion to conclude that it fails to achieve the § 3553(a)'s purposes, even in "a mine-run case." Kimbrough, 128 S. Ct. at 575.

The first paper of this project is available at this link, and it deals with the important and highly contentious issue of the child porn guidelines. The paper is by Troy Stabenowand is entitled "Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (June 10, 2008)."

"Kiwis take to the streets over crime"

Though the headline of this story may sound fruity, the piece reports on a growing controversy in New Zealand over parole policies. Here are the details (which explain the notable picture):

[A]bout 500 people marched to "take back" their suburb and support the family of Navtej Singh, who was shot in a holdup of his Manurewa liquor store a week ago. Yesterday, the Sensible Sentencing Trust joined families of victims outside Auckland's Mt Eden Prison and staged a demonstration for tougher parole laws. The protesters were dressed in black-and-white striped mock prison gear to underline the theme of the demonstration — "Victims get life, Criminals get parole".

Organiser Garth McVicar said the death of Mrs Yang "just reinforced why we were there". "There was a lot of emotion and people were talking about it and what is going on out there." The Sensible Sentencing Trust will also be involved in a hikoi, or march, this month organised by Hastings councillor Henare O'Keefe, whose daughter was the victim of a home invasion last week. The eight-kilometre walk on June 27 has been dubbed "Enough is Enough! We are taking our community back!"....

The march took place as police say they are considering putting armed patrols on Auckland streets to deal with the growing violence. The proposal, following a top level police review, involves a six- month trial of armed patrols 24 hours a day, seven days a week. For the trial, police will be armed with Bushmaster semi-automatic rifles and Glock 9mm pistols....

June 15, 2008

Is Jesus the answer to overcrowded prisons?

This local article, headlined "Jesus and drug court: Packed prisons lead to jail alternatives," provides a divine response to mass incarceraton Here are snippets:

One look at the members of Twin Falls' Because of Jesus Ministries makes its obvious these aren't your typical post-incarceration counselors. Nearly all of them have been involved at some point in illegal gangs. Most know the inside of our nation's drug culture. Some have killed people. The support group's style may be unorthodox. But it may also be part of a larger solution to problems stemming from Idaho's exploding prison population.

Anthony Lopez, 32, the founder of Because of Jesus, has been in and out of prison since age 8. After his 2006 release, he began his ministry to ex-convicts and prison inmates, reaching out to those who seemed least open to his message. But he knew many yearning to hear it. The group's mission, Lopez said, is to help any person find his way out of despair, crime and prison into a fruitful, Christ-centered life. In an era when Idaho's justice system can't handle more prisoners, the state needs all the help it can get.

Since 2000, the state has seen a nearly 50-percent increase in the number of inmates it houses. With little space in the state prisons, Idaho Department of Corrections routinely farms out prisoners to costly private prisons in other states. What's less apparent is just how much, if at all, prison overcrowding is affecting Idaho's legal system.

From prosecutors to judges to probation officers, no one will admit overcrowding impacts conscious decisions on prosecution, sentencing and management of convicts. But Minidoka County Prosecutor Nicole Cannon said Idaho's prison population has begun to factor into every facet of the legal system. She said prosecutors and judges may not consciously consider prison overcrowding when pushing sentences. But she suspects the state's lack of space has led to probation for some ill-qualified convicts and reduced charges for others.

In 2001, Idaho initiated its drug courts, widely hailed for reducing recidivism rates among drug-addicted convicts. Drug court is available to offenders who plead guilty to a drug or substance abuse-related charge. To qualify, prosecutors must recommend offenders into the program and judges must uphold that recommendation. If the drug court coordinator and private treatment providers agree an offender's central problem is addiction to drugs or alcohol, the offender enters a one-year treatment program governed by restrictions that gradually relax as it progresses. At the end of the year, charges that led to drug court are dismissed for offenders who have completed all the program's requirements.

"In my view, drug court is the single most successful program we have in diverting people away from drugs," said State Sen. Denton Darrington, R-Declo. Since drug court's inception, Roskelley said, 60 percent of its graduates have avoided further drug charges. Roskelley said state legislators have come to understand drug court's value in keeping drug users off a path to prison. Considering the most serious conviction for nearly one quarter of Idaho's inmates is drug-related, that's good news not just for the state's budget, but for public health and safety as well....

Anthony Lopez describes his friend Jesus Ortega as being so full of anger when the two men met that Ortega told Lopez he slept better knowing he was going to hell. Ortega was one of Lopez' first Soldiers in Christ - as Because of Jesus members are known - but the road wasn't easy. At the time, Ortega said, problems in his life stretched beyond anything any normal support group could touch. "For me it took the power of Christ," he said. "AA (Alcoholics Anonymous) wasn't going to help."...

The politics and practicalities of a post-Heller Second Amendment world

With two weeks to go in the Supreme Court term, the media and pundits are starting to gear up for what it might mean politically if (when?) the Justices hold in Heller that the Second Amendment protects an individual right to keep an bear arms. For example, this ABC News piece discusses how a leading gun control group views the state of the gun wars, with the headline "Gun Control Group Braces for Court Loss: 'We've Lost the Battle on What the 2nd Amendment Means,' Brady Campaign Head Says." Similarly, this Los Angeles Times article looks at matters from the NRA perspective, with the headline "NRA's political clout is waning: With 2nd Amendment rights expanded and Democrats reluctant to tackle the issue, gun control isn't the GOP weapon it used to be; The rifle group, in essence, is a victim of its own success."

Though I am not qualified to make bold predictions about the political landscape after the expected ruling in Heller, I expect that there will be unexpected legal (and political?) twists if (when?) federal defendants start aggressively asserting Second Amendment claims after Heller. As I have highlighted in a number of prior posts (linked below), if the Heller ruling has some significant "self-defense" dicta, the types of persons asserting Second Amendment rights in federal courts may create headaches for politicians of all stripes concerning their approaches to gun issues.